Norton v. Perry

KY Court of Appeals, Nos. 2009-CA-002343-MR, 2009-CA-002394-MR, October 12, 2012: Nominating process for National Register fundamentally flawed and subject to review in state court.

This appeal turns on state court jurisdiction and process. The appeal arose in response to the process of nominating a property to the National Register of Historic Places, specifically the way the state government counts the number of owners of property nominated to the National Register for the purpose of determining whether a majority of owners object to the nomination. Norton and others (Appellants) objected to the nomination of their property, known as the “Upper Reaches of Boone Creek” by the Kentucky Historic Preservation Review Board to the National Register.

Appellants sought injunctive and declaratory relief in state court, claiming that the way owners were counted in this case resulted in an unconstitutional taking, due process violations, trespass, conversion, defamation, and unjust enrichment.  The state trial court dismissed the case, deciding it lacked jurisdiction to hear the case, even though that court also said that the federal nomination regulations were arbitrary and unclear, that the process potentially deprived property owners of rights, and that the regulations violated due process. The Appellants appealed the dismissal to the Kentucky Court of Appeals.

The Court of Appeals decided that the issues in the case could be categorized as “(1) jurisdictional issues including personal jurisdiction and subject matter jurisdiction, as well as the concurrent jurisdiction of state and federal courts to hear their claims; and whether the doctrines of mootness and failure to exhaust administrative remedies apply; (2) constitutional issues including unconstitutional taking and due process violations, both substantive and procedurally; (3) governmental immunity; and (4) common law claims including trespass and defamation.”

The Court held that the trial court did have concurrent jurisdiction to hear the common law claims presented at trial, because the government did not convince the Court that there is an explicit provision or implicit recognition by Congress confining jurisdiction to federal courts.

The Court then rejected the government’s contention that the Appellants were seeking to have a state court remove a property from the National Register. Instead, the Court understood the Appellants to seek a determination whether “procedural irregularities occurred in the nomination process in order to provide a ground for removal when petitioning the Keeper”.  As such, under applicable federal regulations (36 C.F.R. § 60.15(a)(4)), the Appellants were not required to exhaust administrative remedies before they could obtain judicial relief.

Regarding the unconstitutional taking claim, the Court held that the Appellants were entitled to discovery on this issue before the trial court could entertain a motion to dismiss.

Regarding the due process violation claim, the Court held that the process used to assess the number of property owners and the number of objections was “fundamentally flawed … arbitrary and unclear because there is no fixed time at which the number and names of the landowners are determined at a reasonable time prior to the hearing, thus leading to a continual fluctuation in the number of landowners and required objections.” In addition the Court found it arbitrary and in violation of Appellants’ due process rights that the government counts properties owned by trusts, estates, LLCs, and LPs as entitled to “a single vote” (i.e., as owned by one single owner) while a husband and wife each count as owners regardless of how the title is held.

Decision available at and

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